The Vice-Chancellor:
There is no pretence of fraud in the ceremonial-or manner of obtaining Mrs. Powell’s signature and seal or her having executed the instrument without a knowledge of its contents ; and I can perceive no room for imputing intentional fraud to any of the parties.
Nor can the deed be considered a voluntary one and without consideration. A valuable consideration was given in the grant of the annuity as a substitute for what she gave up or parted with. It is true that the one was a fourth less than the other; but the inadequacy is not such as, under the ' [642]*642circumstances, amounts to evidence of fraud. In the absence of such fraud, the transaction must be allowed to stand, although this lady voluntarily and without an equivalent relinquished a part of what she was strictly entitled to by the will. If the will were now before me for adjudication, I should say she was entitled to the whole of the provision, without abatement; and if the rents or income were insufficient to produce the interest of two thousand pounds sterling a court of equity would compel a sale for the purpose of raising the two thousand pounds and investing it at interest for her benefit.—But, if she chose to forego the right of insisting upon the provision of the will, preferring the certainty of four hundred dollars a year for herself and the'full sum of two thousand pounds sterling for her children at her death, rather than have a forced sale of the property, which possibly might not have produced the full amount, it does not follow she shall afterwards be relieved.
A deed perfectly gratuitous and voluntary will not, for that reason, be set aside in equity, when free from fraud and when the party has not thought proper to reserve to himself a power of revocation: Villers v. Beaumont, 1 Vern. 100; Colman v. Sarrel, 1 Ves. J. 50.
The court cannot suppose that Mrs. Powell was uninformed as to her rights or labouring under any delusion or misconception of what she was entitled to under the will. Her husband, it appears, had previously been appointed judge of the court of King’s Bench of Upper Canada; and, a few years afterwards, chief justice—which office he filled for many years. It may be supposed he was competent to form a correct opinion as to what were her rights under the will and how those rights could be enforced. It appears, moreover, that in the year one thousand seven hundred and eighty-nine or about that period he visited Boston; and consulted and employed counsel there to look after and assert her claims, if the executors should refuse to pay. Mrs. Powell was doubtless informed of her husband’s opinion of the will and competent to act understandingly on the subject of the proposed arrangement. She was not surprised into it. No undue advantage was taken of her necessities or situation. The letters, containing the propo[643]*643sal, evince no desire or anxiety to have her agree to it unless after she had become perfectly satisfied.
It is not like the case of Evans v. Llewellin, 1 Cox’s Ca. 333, and 2 Bro. C. C. 150, where deeds were set aside as being improvidently obtained on the ground of an inadequacy of consideration: the parties being in low circumstances, unapprised of their rights until the very time of the transaction—and then taken by surprise—no opportunity allowed them to consult their friends and none present to give them advice—the transaction hurried through—and although no actual fraud appeáred to be intended, those circumstances partook of fraud and the court granted relief. But it is not so here.
With respect to the point of defective execution of the deed, inasmuch as the husband, although named as a party, has never signed it: I think it cannot be successfully urged. The subject matter was the separate property of the wife, in regard to which equity looks upon her as if she were a jfeme sole. Incident to the ownership in her was the power of disposition over it, without the assent or concurrence of her husband: Fettiplace v. Gorges, 1 Ves. J. 46, and 3 Bro. C. C. 7; Sturgis v. Corp, 13 Ves. 190; Essex v. Atkins, 14 Ib. 542; and having executed the instrument for herself and had the benefit of it, she cannot, afterwards, be permitted to take advantage of the omission of her husband’s signature and seal to cancel her own. Besides, if the husband’s concurrence was necessary, there is abundant evidence of a complete recognition of the deed on his part as a valid and subsisting instrument. He subsequently appointed agents to receive the money under it; and in the year one thousand eight hundred and eighteen united with Mrs. Powell in a power appointing Mr. George Gallagher their attorney for the special purpose of receiving the money which was payable by the deed. This one act. of the husband’s is a sufficient ratification, at least in equity.
But a still stronger ground upon which the court cannot now interfere to set aside the deed and open the transaction is the lapse of time. The parties have acquiesced from one thousand seven hundred and ninety-four to the year one thousand eight hundred and thirty—a period of about thirty-[644]*644six years. There is some evidence of occasional dissatisfaction expressed by Judge Powell in one thousand eight hundred and five and one thousand eight hundred and six and of his threatening or causing a chancery suit to be commenced; but if so, it was abandoned—and in eighteen hundred and nine and the following year it would seem to have been no longer a subject of discontent and he then went on receiving the half-yearly payments of the annuity. No sufficient evidence is given of his inability to prosecute a suit for the purpose of vacating the deed and of restoring Mrs. Powell to her rights under the will. The delay is not accounted for.
In Gregory v. Gregory, Cooper’s R. 201, a bill was filed to set aside a purchase made by a trustee, upon the ground that the consideration for the conveyance was grossly inadequate—that the plaintiffs were ignorant, at the time, of the value of their interests under the will and were in indigent circumstances and advantage was taken of them. Eighteen years elapsed before filing the bill and upon that ground alone it was dismissed, although the case presented strong equities and the court would have relieved had the transaction been a recent one. The decision of the master of the Rolls was affirmed on appeal: 1 Jac. R„ 631.
Laches and neglect are always to be discountenanced in equity. A party must not sleep upon his rights here any more than at law. He must use all reasonable diligence to assert his claim or the court will not help him. This principle is found in a great variety of cases: Smith v. Clay, 3 Bro. C. C. 639, n; Jones v. Tuberville, 2 Ves. Jr. 11; Hercy v. Dinwoody, Ib. 87 ; Campbell v. Walker, 5 Ib. 678; and it is more particularly applicable to stale demands brought forward and attempted to be supported for the first time after the death of the original party to the transaction.
But it is said that Mr. and Mrs. Powell remained many years ignorant of the facts which have since been discovered and which now show that Murray and Clark acted with a fraudulent design in obtaining the property discharged of the lien of the two thousand pounds, with a view of selling the same and benefitting by an investment of the money and [645]
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The Vice-Chancellor:
There is no pretence of fraud in the ceremonial-or manner of obtaining Mrs. Powell’s signature and seal or her having executed the instrument without a knowledge of its contents ; and I can perceive no room for imputing intentional fraud to any of the parties.
Nor can the deed be considered a voluntary one and without consideration. A valuable consideration was given in the grant of the annuity as a substitute for what she gave up or parted with. It is true that the one was a fourth less than the other; but the inadequacy is not such as, under the ' [642]*642circumstances, amounts to evidence of fraud. In the absence of such fraud, the transaction must be allowed to stand, although this lady voluntarily and without an equivalent relinquished a part of what she was strictly entitled to by the will. If the will were now before me for adjudication, I should say she was entitled to the whole of the provision, without abatement; and if the rents or income were insufficient to produce the interest of two thousand pounds sterling a court of equity would compel a sale for the purpose of raising the two thousand pounds and investing it at interest for her benefit.—But, if she chose to forego the right of insisting upon the provision of the will, preferring the certainty of four hundred dollars a year for herself and the'full sum of two thousand pounds sterling for her children at her death, rather than have a forced sale of the property, which possibly might not have produced the full amount, it does not follow she shall afterwards be relieved.
A deed perfectly gratuitous and voluntary will not, for that reason, be set aside in equity, when free from fraud and when the party has not thought proper to reserve to himself a power of revocation: Villers v. Beaumont, 1 Vern. 100; Colman v. Sarrel, 1 Ves. J. 50.
The court cannot suppose that Mrs. Powell was uninformed as to her rights or labouring under any delusion or misconception of what she was entitled to under the will. Her husband, it appears, had previously been appointed judge of the court of King’s Bench of Upper Canada; and, a few years afterwards, chief justice—which office he filled for many years. It may be supposed he was competent to form a correct opinion as to what were her rights under the will and how those rights could be enforced. It appears, moreover, that in the year one thousand seven hundred and eighty-nine or about that period he visited Boston; and consulted and employed counsel there to look after and assert her claims, if the executors should refuse to pay. Mrs. Powell was doubtless informed of her husband’s opinion of the will and competent to act understandingly on the subject of the proposed arrangement. She was not surprised into it. No undue advantage was taken of her necessities or situation. The letters, containing the propo[643]*643sal, evince no desire or anxiety to have her agree to it unless after she had become perfectly satisfied.
It is not like the case of Evans v. Llewellin, 1 Cox’s Ca. 333, and 2 Bro. C. C. 150, where deeds were set aside as being improvidently obtained on the ground of an inadequacy of consideration: the parties being in low circumstances, unapprised of their rights until the very time of the transaction—and then taken by surprise—no opportunity allowed them to consult their friends and none present to give them advice—the transaction hurried through—and although no actual fraud appeáred to be intended, those circumstances partook of fraud and the court granted relief. But it is not so here.
With respect to the point of defective execution of the deed, inasmuch as the husband, although named as a party, has never signed it: I think it cannot be successfully urged. The subject matter was the separate property of the wife, in regard to which equity looks upon her as if she were a jfeme sole. Incident to the ownership in her was the power of disposition over it, without the assent or concurrence of her husband: Fettiplace v. Gorges, 1 Ves. J. 46, and 3 Bro. C. C. 7; Sturgis v. Corp, 13 Ves. 190; Essex v. Atkins, 14 Ib. 542; and having executed the instrument for herself and had the benefit of it, she cannot, afterwards, be permitted to take advantage of the omission of her husband’s signature and seal to cancel her own. Besides, if the husband’s concurrence was necessary, there is abundant evidence of a complete recognition of the deed on his part as a valid and subsisting instrument. He subsequently appointed agents to receive the money under it; and in the year one thousand eight hundred and eighteen united with Mrs. Powell in a power appointing Mr. George Gallagher their attorney for the special purpose of receiving the money which was payable by the deed. This one act. of the husband’s is a sufficient ratification, at least in equity.
But a still stronger ground upon which the court cannot now interfere to set aside the deed and open the transaction is the lapse of time. The parties have acquiesced from one thousand seven hundred and ninety-four to the year one thousand eight hundred and thirty—a period of about thirty-[644]*644six years. There is some evidence of occasional dissatisfaction expressed by Judge Powell in one thousand eight hundred and five and one thousand eight hundred and six and of his threatening or causing a chancery suit to be commenced; but if so, it was abandoned—and in eighteen hundred and nine and the following year it would seem to have been no longer a subject of discontent and he then went on receiving the half-yearly payments of the annuity. No sufficient evidence is given of his inability to prosecute a suit for the purpose of vacating the deed and of restoring Mrs. Powell to her rights under the will. The delay is not accounted for.
In Gregory v. Gregory, Cooper’s R. 201, a bill was filed to set aside a purchase made by a trustee, upon the ground that the consideration for the conveyance was grossly inadequate—that the plaintiffs were ignorant, at the time, of the value of their interests under the will and were in indigent circumstances and advantage was taken of them. Eighteen years elapsed before filing the bill and upon that ground alone it was dismissed, although the case presented strong equities and the court would have relieved had the transaction been a recent one. The decision of the master of the Rolls was affirmed on appeal: 1 Jac. R„ 631.
Laches and neglect are always to be discountenanced in equity. A party must not sleep upon his rights here any more than at law. He must use all reasonable diligence to assert his claim or the court will not help him. This principle is found in a great variety of cases: Smith v. Clay, 3 Bro. C. C. 639, n; Jones v. Tuberville, 2 Ves. Jr. 11; Hercy v. Dinwoody, Ib. 87 ; Campbell v. Walker, 5 Ib. 678; and it is more particularly applicable to stale demands brought forward and attempted to be supported for the first time after the death of the original party to the transaction.
But it is said that Mr. and Mrs. Powell remained many years ignorant of the facts which have since been discovered and which now show that Murray and Clark acted with a fraudulent design in obtaining the property discharged of the lien of the two thousand pounds, with a view of selling the same and benefitting by an investment of the money and [645]*645that they have succeeded in making a large profit for which, as trustees, they are liable to account.
I think, however, they did not stand exactly in the light of trustees. They were residuary devisees of this specific portion of the estate and, together with Robins, were executors of the will. As such devisees, they were entitled to all the benefit of the property over and above the legacy charged upon it; and the relation in which they stood to the property and to Mrs. Powell did not forbid their becoming purchasers of her interest. The objection, on this ground, is not valid; and even if, after they had sold the property and realized a sum exceeding two thousand pounds, they advanced to Robins only fifteen hundred pounds while they took his mortgage for two thousand, with interest at four and an half per cent., so as to produce the annuity of four hundred dollars and, by that means, gained five hundred pounds which they have since had the use of, I do not well perceive how it necessarily follows that Mrs. Powell can claim from them the interest of the five hundred pounds by way of making up the amount which she had agreed to relinquish. I am inclined to think the letter from Murray to Mrs. Powell of September 4th 1826, gives a true account of their placing in Robins’ hands fifteen hundred pounds of the money and no more, requiring him to secure and repay the whole sum of two thousand pounds at Mrs. PowelKs death with interest in the mean time at four and an half per cent., nominally, but which was, in fact, six per cent, on the sum actually advanced. They may have found him willing to take the money on those terms; and it can hardly be supposed they would have been willing to lend the whole two thousand pounds sterling at an interest so far below the legal rate as the face of the mortgage shows. The oppressive nature of the bargain with Robins, if it was such, is not evidence of any fraudulent design, on their part, towards Mrs. Powell in their previous arrangement with her. Whether there were any statute at that time in force in Massachusetts against usury, which would have jeopardized the loan to Robins or avoided the security, does not appear; but if so, they, as executors, must have answered for the [646]*646principal sum of [two thousand pounds sterling in their own persons, and estate.
'j’pg knowledge or concealment of the circumstances of that transaction appears to me not to vary, in any respect, the rights of the parties. Whether it was for the first time made known by the letter of Murray to JI|rs. Powell in the year one thousand eight hundred and. twenty-six or was verbally communicated in the conversation alluded to in the same letter in one thousand eight hundred and sixteen seems not very material. I consider the effect of the delay or lapse of time upon the claim set up in opposition to the deed is not obviated by any thing' appearing in the case and, consequently, that Mrs. Powell is not entitled to an account of any arrears of interest on the two thousand pounds sterling, being the difference between that • and the annuity which has been paid to her.
However, the bill is not to be dismissed. It is conceded that the money remains in the estate of Mr. Murray, not set apart or invested in any specific securities ; and it is right and proper it should be securely invested so as to produce Mrs. Powell’s annuity in future and, at her death, the capital to be divided and paid over to her children and the surplus income, if any in the mean time, to go to the representatives of Murray towards satisfying the outstanding bond in Boston against his estate.
A decree may be made accordingly; but the complainants are not entitled to costs—neither, under the circumstances, ought they to pay costs to the defendants the Murrays. As to the defendants, the executors of Clark’s estate, the bill must be dismissed with costs, although, from the frame of the bill, and the nature of the claim made by it, they were deemed necessary parties. If it hád been confined to the investment of the capital, they would have been unnecessary parties ; but as the bill sought to recover arrears of interest in which they have failed, the complainants must pay costs to these executors.